Soldiers who takefor active service or training are generally entitled to return to their jobs when they finish their military service. They even have protection from being terminated without cause if they served long enough.
But the Uniformed Services Employment and Reemployment Rights Act (USERRA) does not protect employees who fail to follow existing company rules when they return or try to return.
Recent case: Jordan To enlisted in the Minnesota National Guard and was assigned to attend training in Fort Benning, Ga. While there, he became ill and his training period was extended. He called his supervisor and faxed in his new military orders.
When the training ended, To told the company he wanted to return, but was having medical problems. Company policy required employees to report each absence ahead of time and provide a medical excuse when requested. To did so and got a new return date. That time came and went—with no word from To.
He was then terminated for failing to follow the call-in process. To then claimed he had faxed in a doctor’s note extending his absence, but admitted he hadn’t called.
That admission sank his case. The court said the employer was within its right to insist that even returning service personnel follow the rules. (To v. U.S. Bank, No. 10-3237, 8th Cir., 2011)
Advice: Don’t use failure to follow a rule as an excuse to terminate a soldier unless you can show that other employees were terminated for similar conduct. Otherwise, it looks as if applying the rule could be merely a pretext for discrimination against service members.
Remember that treating all employees fairly and enforcing rules for all employees is the best way to prevent lawsuits of all kinds, not just USERRA claims.
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